FMLA FAQ: Must an Employer Designate FMLA Leave When the Employee Does Not Want to Use FMLA Leave, or When the Employee Fails to Mention FMLA?

Q: One of our employees will be absent for a serious health condition. However, the employee prefers to use his accrued sick days instead of FMLA leave. He has enough sick time to cover the absence. In this situation, can the employee choose not to take FMLA leave, either because he has not specifically asked for FMLA leave or because he simply does not want to use FMLA leave?

A: This is one of the most common questions I am asked in my practice, and it is due largely to the grand confusion caused by the Family and Medical Leave Act. There actually are several sub-questions contained in the nugget above, and I answer them below.

1.Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act? Heck no! Why? The U.S. Department of Labor says so. In its FAQs (pdf) on the FMLA, the DOL specifically states that when “an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA.” Rather, the employee need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave. Note: After the employer has provided FMLA leave for this reason, however, the DOL tells us that “the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave.”

Thus, it becomes critical that HR professionals and supervisors fielding the call-offs from employees be trained and in a position to identify situations where the employee has put you on notice of the need for FMLA leave.

2. If the employee qualifies for FMLA leave, can an employer make the employee use FMLA leave, even if the employee does not want to use it? Do not let your employees sweet-talk, bamboozle or bully you into not counting an absence as FMLA leave where the leave of absence is taken for an FMLA-qualifying reason. Take it from the regulations themselves:

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee . . . When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. 29 CFR § 825.300(d)

The employer’s obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave. In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event. Employees do not have the right to choose when they take FMLA leave. As soon as the leave of absence qualifies as FMLA leave, it should be designated as such — regardless of whether the employee wants FMLA to apply.

Failing to designate an absence as FMLA leave can have quite a negative impact on an employer’s operations. For example, if you fail to designate an employee’s 10-week absence as FMLA leave (when it rightfully qualifies as such), but instead allow them to utilize accrued sick leave from their sick bank, you effectively have allowed the employee leave that they otherwise are not entitled to by law. Although they will have exhausted 10 weeks of sick leave, they still have up to 12 weeks of FMLA leave available to them (instead of two weeks) because you did not designate the 10-week absence as FMLA leave.

3. Can an employer require paid leave to run at the same time as FMLA leave? Here, the employer’s policy governs. If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time. 29 CFR § 825.207(a). In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave.

In this situation, you run into the same troubled situation identified in Section 2 above — the employee can stack paid leave and FMLA leave on top of each other, resulting in more leave than the employee legally is entitled to. If your policy currently does not require paid leave to run concurrently with FMLA leave, discuss this with employment counsel to ensure your policy is consistent with your business objectives. The money you save in the long run will be well worth the advice.

What if the employee doesn’t return the med cert? Doesn’t that give him/her the ability circumvent the whole issue of whether the leave is actually FMLA?

I understand that the employer could use sick leave policies to discipline the individual due to excessive use, for example, but if there’s no policy in place and the employee has enough sick leave to cover the time off, then it seems to me that by not returning the med cert he/she could get what was desired in the first place and there’s nothing the employer could really do about it. What’s your take?

http://www.franczek.com/attorneys-42.html Jeff Nowak

It doesn’t allow the employee to circumvent the process at all. He or she would then be subject to the employer’s policy with respect to non-FMLA related absences. Simply because the employee also has sick days available doesn’t protect him/her against discipline for absenteeism.

When the leave is not protected by FMLA, the employer can take disciplinary action.

http://www.halemakua.org Lani

In Hawaii, a bill was passed regarding the usage of sick leave. If an employee use their sick leave, employer are not able to take disciplinary action. So if an employee refuses to return med cert, the employee will have a win-win situation. The employee will continue to be protected under this Hawaii bill and the employee will still have up to 12 weeks of FMLA. Should we just designate FMLA?

http://www.franczek.com/attorneys-42.html Jeff Nowak

Lani, very interesting. This is the reason why we always need to be mindful of state law obligations. Obviously, this increases our interest in designating an absence as FMLA leave, but of course, employers can only designate where they have enough information that the absence is a qualifying FMLA event.

Orionsune

I’m seriously confused. How is it not legal to use sick when you are sick? That is effectively what you said in your example of failing to designate an employee’s 10-week absence as FMLA but allowing them to use sick time instead. The logic is not adding up here. Additionally, when did HR begin dictating the reasons for why we take leave? So am I to assume I wanted to go out of state for a 2 week vacation but I get sick while i’m on vacation, will my HR department need to know this so they can arbitrarily designate my time off as sick time instead of vacation time? I seriously question your interpretation of the FMLA.

http://www.fmlainsights.com/ Jeff Nowak

Orionsune: Many folks find me illogical, so I empathize with your opinion. But, I still think I’m correct on this one. :)

About Jeff Nowak

Jeff Nowak is co-chair of the labor and employment practice at Franczek Radelet, where he represents employers in all aspects of employment law. His clients praise him as a trusted business partner who is acutely aware of their business goals and the impact employment decisions have on their operations. A staunch advocate and effective litigator for his clients, Jeff also isn’t afraid to be candid with clients where compliance issues or litigation must be resolved to meet business objectives. He is a nationally-recognized leader in the FMLA and ADA, and his passion for the FMLA shows through on this blog.